Director of Public Prosecutions v Brannan

[2017] VCC 1740

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00355

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUGH BRANNAN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 November 2017
CASE MAY BE CITED AS:	DPP v Brannan
MEDIUM NEUTRAL CITATION:	[2017] VCC 1740

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R Marques	Office of Public Prosecutions
For the Accused	Mr A. Pine

HIS HONOUR:

1Hugh Brannan, you have pleaded guilty to the following offences,

·22 counts of theft on the one indictment and then a further count of theft.  That carries a maximum penalty of ten years' imprisonment. 

·Attempted theft, two counts, it carries a maximum of five years' imprisonment. 

·Attempted robbery, one count, carries ten years' maximum. 

·Robbery, one count, carries 15 years' maximum. 

·Arson, three counts, which carry a 15 year maximum. 

·Two counts of criminal damage, carries ten years' maximum. 

·One count of threat to kill which carries a ten year maximum. 

·Attempted armed robbery, one count, carries 20 years' maximum. 

·Four counts of handle stolen goods, carries a maximum of 15 years' imprisonment. 

·Two counts of summary assault, unlawful assault, they carry a maximum penalty of three months' imprisonment; and

·One count of assaulting an emergency worker which carries a maximum of six months' imprisonment.

2You have admitted your prior convictions.  You have only limited Children's Court matters prior to this offending although I was provided with the LEAP history of your subsequent matters.  On 6 February 2017 you received a total effective sentence of 184 days equal to time held in custody for a large number of offences committed whilst on bail.  I shall return to these matters later in my sentencing remarks.

3The Crown tendered a summary of prosecution opening on plea.  A brief summary of your offending is as follows.  Your offending occurred between

[1] A pseudonym name

11 November 2015 until the date of your arrest on 14 April 2016.  Your offending in this time is best described as a spree.  You committed a number of offences with your younger co-offender, Marlow[1].  His matters were dealt with in the Children's Court and so his sentence provides no real point of parity due to the different sentencing objectives of the Children and Youth and Families Act.

4Indictment G11091856B contains 37 counts and indictment G11091856A.1 contains one count of theft.  In addition to that three summary charges were uplifted.  It's unnecessary to recite the facts relating to all of your offending.  Accordingly I will group some of the offences and then outline the facts in relation to a few of those matters.

5Across the two indictments you admitted to stealing or attempting to steal
12 cars and one motor scooter.  Eleven of the charges relate to theft of petrol.  Essentially these latter offences relate to drive offs from service stations where you filled the stolen car with petrol and then drove off.  You were charged with handling stolen goods including registration plates.  The evidence reveals that you regularly changed registration plates on the stolen vehicles in order to avoid detection of the theft of that vehicle and for the theft of the petrol.

6You admit to three counts of arson.  These are particularly disturbing as the evidence shows that on three occasions the cars you stole were set alight and destroyed by fire, usually only minutes or hours after they were stolen.  Another car and a motor scooter were damaged by you.

7The charge of attempted robbery occurred on 5 March 2016.  You were driving a stolen car when you pulled up next to a BMW sports car.  Menacingly you asked the driver if you could have the car.  When he said no, you said "Are you sure, cunt?  Are you sure, 'cause I'm going to fucking take it".  The unknown male passenger in your stolen car then opened his door and rammed the driver's side door of the BMW three times causing damage to the car.  The driver of the BMW followed you for a period of time.  Rather than drive off you turned around and stopped your stolen car to confront the driver of the BMW.  You spat on the windscreen of the BMW.  Your co-offender yelled out then reached down and pulled out something similar to a tyre wrench or a pole.  A swab was taken from the windscreen and you were identified as a contributor to the DNA.

8The charge of robbery occurred on 30 March 2016 at Southbank.  You and an unknown co-offender got out of a Nissan Pulsar car which you admit having stolen only a couple of hours before.  You and your co-offender approached the victim who was standing next to his car.  You and the co-offender approached him, punched him and pulled him out of his car.  One of you then drove the victim's vehicle and another of you drove the car stolen earlier.  You drove to Albert Park where you destroyed the Nissan Pulsar by setting it alight.

92 April 2016 was a day of high criminal activity.  Ten of the charges to which you have pleaded guilty occurred on this day.  In the early morning of 2 April you approached one male victim in the West Gate car park near Port Melbourne.  You and unknown offenders approached the victim's BMW with baseball bats and tried opening the driver's door.  However the victim had locked his car.  You used the baseball bats to hit the victim's vehicle's windows, front bumper, headlights and side mirrors and punctured the front tyre.  You caused about $2000 damage.  You have pleaded guilty to assault; for the fear of apprehension of violence that your acts caused.

10On the same morning you were driving near the Albert Park grand prix track doing burnouts.  You were approached by a security guard on a motor scooter.  You were wearing a hoodie to conceal your face and ran towards the guard yelling "We will kill you all".  Your co-offender got out of the car holding a meat cleaver and said words to the effect "We will cut you with this".  You chased the victim in the car you were driving.  He fell off his motor scooter where you and the co-accused, Marlow, assaulted him.  You punched him to the head and Marlow used the handle of the meat cleaver to hit the victim.  You dumped the motor scooter in the Albert Park lake.  You have pleaded guilty to making a threat to kill, unlawful assault and criminal damage from this conduct.

11Later the same morning in Derrimut, you and Marlow approached a victim in his car.  Marlow was holding a metal bar with rubber on the end above his head.  He demanded the victim's wallet and held the bar above his head in a threatening manner.  When the victim refused Marlow hit the victim's car three times with the bar.  You have pleaded guilty to attempted robbery.

12Still later on the same morning you and Marlow went to a factory in Ravenhall.  You were described as being drug affected.  You confronted the workers at a factory and you pulled on a skull mask and became aggressive with one of the workers.  As you distracted the worker Marlow stole his car and crashed it into the factory's cyclone fence.  Marlow got out of the car and you both ran back to the car in which you arrived.  You were identified by a photo board identification.

13Still later on the same day at the Niddrie Central shopping centre an off duty policeman noticed you in the car.  You and your co-offenders were all wearing hoodies with your hoods pulled over your faces.  The policeman reached into his car and took out his identification badge.  The policeman approached your car and asked you to turn off the engine and produce your driver's license.  You abused him and told him several times you wanted to fight him.  You did not obey his instructions to get out of the car.  Instead you leaned out of the car and spat at him and then drove off.  You have pleaded guilty to assault.

14When you were arrested on 22 April 2016, police searched the house where you were living.  A large number of stolen items were found at the house including 14 sets of stolen registration plates.  Five sets of those plates were used to facilitate 14 charges of dishonest offending.

15When you were interviewed by police you made a no comment record of interview.  You were released on bail on 13 May 2016 and then returned to custody on 21 July 2016.  You have remained in custody since that date. 
I simply note that in the brief period that you were on bail you committed a large number of offences for which you were sentenced in February 2017.  Accordingly 184 days of the time you spent in pre-sentence detention is now attributable to the sentence you received in the Magistrates' Court. 

16Your co-offender on a number of the offences, Marlow, was dealt with in the Children's Court.  Accordingly, as I have said, no parity principle applies in this case.

17I turn now to your personal circumstances.  You are 23 years of age and you were born in June 1994.  You were the youngest of four children.  Your parents separated when you were 18 months' old.  Your two oldest brothers moved with your father to Perth.  Your next brother also then moved to Perth and you remained with your mother in Tasmania until you were 13 years old.  Your mother remains supportive of you and still lives in Tasmania.  You have had frequent contact with her whilst you have been in prison.  Her support of you has been described as "foundational".

18At 13 you wanted to spend more time with your father and by then he had moved back to Melbourne.  You moved in with him.  Although you had moved in with your father at 13, you were living with two of your brothers by the age of 15.  Your brothers, Tim and Sam, were present in court and your brother, Sam, gave sworn evidence on your behalf.  Your brothers impressed as decent, hardworking men.  Your brother, Sam, admitted to having had some trouble in the past but it is apparent that he leads a stable family life with his partner and daughter.  You have previously worked for him in his plastering business.

19You left school by the age of 15 and your Counsel described you as having lacked guidance during your crucial formative years.  Rather, you were trying to live a life like your brothers but without the maturity to do so. 

20At age 16 you had started a plastering apprenticeship.  You completed two years of that trade.  You were working full time six days a week.  Your brother, Sam, was concerned that at the time your peer group was much younger than you.  You started missing days off work and he would not see you.  He heard stories of you getting involved with drugs.  Your Counsel confirmed that at this time you had commenced drinking alcohol and started taking drugs in your mid to late teen years.  Your offending on these indictments is related to your use of methylamphetamine.

21It is apparent from the plea made on your behalf that you still have the support of your mother and your brothers.  In his evidence your brother, Sam, said that you will be able to live with him again upon your release.  You will need to have strong family support around you upon your release from prison. 

22When you returned to live with Sam when you were released on bail in May 2016 within a short period of time you broke his trust by taking off from his address to which you were bailed.  You also abused his loyalty to you as he did not put you into the informant.  It will be necessary for me to structure a sentence to ensure that it is you that bears the consequences of
non-compliance and that no such burden is placed on your family members.

23Since you have again been in custody you have undertaken a number of drugs tests, all with negative results.  Moreover you have used your time in custody productively and you have completed a number of educational courses.  Your brother gave evidence that he has seen a huge difference in you over the last 12 months.  He states that being in custody with adults means that you have developed a respect for people.  He stated that you talk of your abhorrence of drugs.  He has seen a change in your maturity.  You talk about wanting to start work again, living on a farm and riding motorbikes.

24On your behalf your Counsel, Mr Pine, submitted that four essential elements should mitigate your plea.  First the plea of guilty was made at the earliest time.  In fact the plea to all but one charge was offered in November 2016.  That outstanding matter was listed for trial and then discontinued after a pre-trial hearing that was conducted before me.  A charge of theft of motor car was substituted to which you pleaded guilty.  In the circumstances I consider that the plea of guilty to all matters was entered at the earliest time and has a true utilitarian benefit.  The plea has resulted in a saving of time, money and distress to witnesses.  I also consider that the plea is attended by some remorse. 
The plea, in this case, facilitates the course of justice.

25Next, Mr Pine submitted that your youth is an important sentencing consideration.  Given the evidence of your brother, that your peer group was significantly younger than you, Mr Pine submitted that there is considerable indication that at the time of your offending you were immature relative to your age.  Mr Pine pointed to the fact that you co-offender, Marlow, was three years younger than you.

26Whilst it was readily conceded that your offending was in some instances terrifying, Mr Pine submitted that aspects of your offending reflected your youth and immaturity.  In the words of the case, Azzopardi v R, your immaturity made you "more prone to ill-considered or rash decisions" and you lacked "the degree of insight, judgment and self-control possessed by an adult".  As such it may be that you did not fully appreciate the nature, seriousness and consequences of your criminal conduct. 

27I am prepared to consider that your youth is a factor that I should take into account in the overall sentence I impose on you.  I note the effort that you have taken since you have been in custody since July last year and the apparent increase in your maturity as noted by your brother.

28There are, however, aspects of your offending where youth and rehabilitation must take a backseat to other sentencing principles.  Your terrifying confrontation of the owner of the BMW, the victim in the Port Melbourne car park, the factory workers at Ravenhall, the security guard at Albert Park Lake and the policeman at the supermarket are the very sorts of crimes which, as your Counsel conceded, all cause grave public concern for safety.  In these instances general deterrence, denunciation and protection of the public must remain the primary sentencing principles. 

29Furthermore there are the arson offences. These were dangerous acts of wanton destruction.  I am required to sentence you as a serious arson offender in respect to two of the offences which means that protection of the community is the principal purpose for which those sentences must be imposed.  Furthermore the legislation requires that the sentences for those offences should be served cumulatively on other sentences imposed in this case.  Although it was conceded by the prosecution that some concurrency would be appropriate.

30As your Counsel and the prosecution both observed, whilst the question of youth ought properly to mitigate your overall sentence, the balance in this case is difficult to achieve because of the serious nature of a considerable number of the crimes you have committed.  Overall, however, I consider that some real allowance must be made for your youth and for your prospects of rehabilitation.  Your sentence will be mitigated by this consideration.

31Hand in hand with the submission was that, apart from youth, you have actually exhibited signs that you have real prospects for rehabilitation.  In this respect Mr Pine pointed to, first, the family support available to you.  In particular you have maintained continuous contact with your mother and your brother has offered you a place to live provided you respect his family unit and remain drug and crime free.  Second, your increased maturity as noted by your brother.  Third, your commitment to stay drug free upon your release from prison.  Fourth, the courses you have completed in custody and, fifth, you resolve to move back into work on your release.

32I consider that these matters do provide some hope that you will continue your commitment to rehabilitate and remain drug free when you are released from prison.  I am realistic, however, to the fact that enforced abstinence through your imprisonment is not going to be easy to maintain once you are released and that you may be subject to temptation from your former peer group. 
The onus remains entirely with you to maintain your commitment to remain drug free and to break all association from your former peer group.  If you do not then it is almost certain that you will come back before the court facing longer and longer periods of imprisonment.

33The final submission made by your Counsel was that I must have regard to the principle of totality.  In other words I must take into account the fact that you have been in custody almost continuously since May 2016 and in that setting an appropriate term must be imposed for each of the offences you face but I must reach an overall sentence which is not crushing.  In doing so I have taken into regard, as I have already stated, the fact that you are to be sentenced as a serious arson offender on two counts with the consequence that protection of the community becomes the principal sentencing purpose and that ordinarily
I should cumulate the sentences for these offences.  However, as I have already stated, I note the Crown concession that a period of concurrency is appropriate in this case.

34On behalf of the prosecution it was submitted that your offending was well planned.  You used drills to break car ignition covers.  You stole registration plates to use on other vehicles and you removed VIN numbers from cars.  Weapons were used in some offences as were disguises.  It was submitted that such confrontations of persons strike fear into people going about their ordinary business and cause great common disquiet.  Your crimes should be met with denunciation, protection of the community and a measure of specific deterrence.  As for general deterrence it was submitted that you fell within the very demographic of those to be deterred. 

35Essentially it was submitted on behalf of the prosecution that you may need a long period of parole.  It was conceded that this was essentially your first time in custody and whilst you had serious Children's Court matters they were not extensive.  On this occasion, however, it was submitted that you had jumped in at the deep end.  Ultimately the prosecutor submitted that what has happened and the period of imprisonment that you have already served has probably been a salutary lesson to you. 

36In the end I have decided that your offending must be met by periods of imprisonment and by some periods of cumulation of sentences.  Otherwise the principles of general deterrence, denunciation, protection of the community and specific deterrence will not be properly met.  However I have tempered the sentences and the overall total effective sentence to meet the principle of totality and to give due consideration to your youth and prospects of rehabilitation.  Furthermore I have decided to impose a longer than usual period of parole.

37Mr Brannan, you will need to work hard whilst you are serving a sentence to ensure that you are granted parole.  If you are granted parole then the structure of the parole system and the availability of a parole officer will help you with your readjustment and reintegration back into the community.  Now I will ask you to stand at this point and I will impose the sentences.

38In relation to Indictment G11091856B on Charge 1, theft of car, you are convicted and sentenced to five months' imprisonment.  Charge 2, theft of petrol, one month.  Charge 3, theft of petrol, one month.  Charge 4, one month.  Charge 5, one month.  Charge 6, five months.  Charge 7, one month.  Charge 8, four months, that is attempted theft of car.  Charge 9, theft of car, five months.  Charge 10, theft of petrol, one month.  Charge 11, theft of petrol, one month.  Charge 12, theft of car, five months.  Charge 13, attempted robbery, 18 months.  Charge 14, theft of petrol, one month.  Charge 15, theft of car, five months.  Charge 16, theft of petrol, one month.  Charge 17, attempted theft of car, four months.  Charge 18, theft of car, five months. 

39Charge 19, robbery, 20 months and I ask you to note that will be the base sentence and I will come back to the periods of cumulation afterwards. 

40Charge 20, arson, 15 months.  Charge 21, theft of car, five months.  Charge 22, theft of petrol, one month.  Charge 23, criminal damage, 12 months. 
Charge 24, threat to kill, eight months.  Charge 25, theft of motor scooter, four months.  Charge 26, criminal damage of scooter, nine months. 

41Charge 27, arson, 15 months.  I note that on Charge 27 you are a serious arson offender and I order that be noted in the records of the court.

42Charge 28, attempted armed robbery, 18 months.  Charge 29, theft of car, five months.  Charge 30, theft of car stereo, one month.  Charge 31, theft of car, five months. 

43Charge 32, arson, I again note that you are a serious arson offender and I order that be noted again on the record, 15 months. 

44Charge 33, theft of petrol, one month.  Charge 34, handle stolen goods, three months.  Charge 35, handle stolen goods, two months.  Charge 36, handle stolen good, two months.  Charge 37, handle stolen good, two months.

45On Indictment G11091856A.1, theft of car, five months. 

46On Summary Charge 33, unlawful assault, one month.  On Summary
Charge 35, unlawful assault, two months.  On Summary Charge 47, that is assault emergency worker, two months. 

47The periods of cumulation are as follows.  As I have noted the base sentence is Charge 19.  On to that Charge 13, attempted robbery, I cumulate three months of the sentence and then Charge 18, theft of car, I cumulate one month.  On Charge 20, arson, I cumulate four months.  On Charge 24, threat to kill,
I cumulate one month.  On the arson, Charge 27, I cumulate six months.  On Charge 28, the charge of attempted armed robbery, I cumulate six months.  On the charge of arson, Charge 32, I cumulate six months.  On Charge 47, assault emergency worker, I cumulate one month.  That should lead to a total effective sentence of 48 months, that is, four years.

48I order that you serve a non-parole period of two years and seven months before you are eligible for parole.

49I declare the period of 334 days pre-sentence detention, excluding today, reckoned as already served. 

50But for your plea of guilty across the two indictments and excluding the summary matters I would have imposed a sentence of five and a half years with four years and four months to serve. 

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